I have practiced in Virginia's appellate courts for over 40 years, and practiced family law almost exclusively since 1983. Since 1991 I have analyzed every significant Virginia family law appeal case for the Virginia State Bar's "Family Law News" quarterly. This blog contains both past and current case notes. I try to comment on the ongoing development of the law, and help other lawyers, journalists and the public understand individual cases. Individual case notes aimed to be accurate when written but are not updated as the law evolves. - Richard Crouch

March 05, 2007

Cases on adultery & alimony: Porter, Wright and Williams

ALIMONY -- ADULTERY -- MALPRACTICE TRAP: In 1988 the General Assembly refused to repeal the traditional prohibition on a court’s awarding alimony to a party against whom adultery is proved--although they did, after intense debate, agree to allow an adulterer alimony to prevent a manifest injustice in the appropriate circumstances. The legislators reckoned without the Virginia Court of Appeals, however, which dislikes the prohibition. In what must have been a very hard case, the court explains (in an opinion that will put quite a premium on early and aggressive litigation of adultery cases) that a judge can easily award spousal support to an adulterous wife, without bothering with any manifest injustice finding. The judge can simply award the divorce on grounds of statutory separation instead, despite the adultery proof, and then there is no bar to awarding of alimony, fees and costs to the guilty spouse. Williams v. Williams, ______ Va App ______ 415 SE2d 252 (1992).

ALIMONY – ADULTERY – MANIFEST INJUSTICE, ETC. In the appeal of a case with an unusual and somewhat confusing fact situation, the Court of Appeals affirmed a Loudoun judge's determination that a wife with a minimal income should get alimony out of the husband's $41,000 yearly income. With her various welfare benefits, and $750 per month alimony, her income would be brought up to $9,000 per year. The husband had alleged adultery, and the Court of Appeals ruling is that assuming adultery was proved (post-separation adultery being apparently what the husband had sought to prove), there was plenty of evidence to support the trial court's ruling that it would be a manifest injustice under §20-107.1(B) to deny spousal support. Evidence showed the wife having severe physical and mental "problems" from the beginning of the marriage to the present, and being unable to work and truly desperate. Evidence adduced by husband from a nurse practitioner that the wife was capable of doing some part-time work was not enough to offset testimony of the wife's physician that she was physically and mentally unable to work at all, given the side effects of her medications. As for the relative degrees of fault, this was a case in which apparently both sides had admitted heavy drinking, fighting with one another, and "relationships" outside the marriage, but the trial court felt that the husband's sins were more detrimental on balance than the wife's. Husband failed with an argument that pre-divorce non-marital cohabitation should be as fatal to alimony as adultery is. Without really explaining how such cohabitation can fail to be adultery, within the statutory definitions of both those things, the Court of Appeals rejects this proposition. Clearly, §20-109 now speaks of cohabitation as a post-marital thing which may in some circumstances serve to terminate or modify alimony that is already ordered and being received. The husband's equation of that with the alimony issue being decided in a divorce is rejected. The court also affirms the judge's $1500 fee award, supported by proof of the $15,000 in attorneys fees the wife had incurred. Wright v. Wright, ___ Va. App. ___, ___ S.E.2d ___, 17 VLW 68 (6/18/02).

ALIMONY — ADULTERY — "MANIFEST INJUSTICE" — RELATIVE DEGREES OF FAULT. Whatever the institution of marriage is today in the eyes of the court system, it — or at least the sexual fidelity aspect of it — is a matter of such trifling importance that it can be outweighed by almost anything, or nothing, depending on how you call 'em. A wife wanted alimony and the husband argued that her post-separation adultery was a bar under Code §20-107.1. It's not, the Court of Appeals explained in Porter v. Porter, unpublished, 19 VLW 286 (7/13/04). After all, there are relative degrees of fault here, and compared to the wife's adultery the husband is clearly the one who destroyed the marriage because (A) he told his wife in the year 2000 that he could live alone, and (B) in late 1999, he had begun to visit attorneys and (C) have one prepare legal documents with the intent to limit her claims on his business and assets. After that, (D) he told wife he wanted to live alone (the evidence showed, according to the Court of Appeals), and (E) in February 2001 he gave the wife a draft separation agreement for her to consider. The trial court in refusing to deny alimony (and refusing to grant the divorce on adultery grounds) properly considered and weighed the respective degrees of fault and properly found manifest injustice.

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Cases on adultery & alimony: Porter, Wright and Williams

ALIMONY -- ADULTERY -- MALPRACTICE TRAP: In 1988 the General Assembly refused to repeal the traditional prohibition on a court’s awarding alimony to a party against whom adultery is proved--although they did, after intense debate, agree to allow an adulterer alimony to prevent a manifest injustice in the appropriate circumstances. The legislators reckoned without the Virginia Court of Appeals, however, which dislikes the prohibition. In what must have been a very hard case, the court explains (in an opinion that will put quite a premium on early and aggressive litigation of adultery cases) that a judge can easily award spousal support to an adulterous wife, without bothering with any manifest injustice finding. The judge can simply award the divorce on grounds of statutory separation instead, despite the adultery proof, and then there is no bar to awarding of alimony, fees and costs to the guilty spouse. Williams v. Williams, ______ Va App ______ 415 SE2d 252 (1992).

ALIMONY – ADULTERY – MANIFEST INJUSTICE, ETC. In the appeal of a case with an unusual and somewhat confusing fact situation, the Court of Appeals affirmed a Loudoun judge's determination that a wife with a minimal income should get alimony out of the husband's $41,000 yearly income. With her various welfare benefits, and $750 per month alimony, her income would be brought up to $9,000 per year. The husband had alleged adultery, and the Court of Appeals ruling is that assuming adultery was proved (post-separation adultery being apparently what the husband had sought to prove), there was plenty of evidence to support the trial court's ruling that it would be a manifest injustice under §20-107.1(B) to deny spousal support. Evidence showed the wife having severe physical and mental "problems" from the beginning of the marriage to the present, and being unable to work and truly desperate. Evidence adduced by husband from a nurse practitioner that the wife was capable of doing some part-time work was not enough to offset testimony of the wife's physician that she was physically and mentally unable to work at all, given the side effects of her medications. As for the relative degrees of fault, this was a case in which apparently both sides had admitted heavy drinking, fighting with one another, and "relationships" outside the marriage, but the trial court felt that the husband's sins were more detrimental on balance than the wife's. Husband failed with an argument that pre-divorce non-marital cohabitation should be as fatal to alimony as adultery is. Without really explaining how such cohabitation can fail to be adultery, within the statutory definitions of both those things, the Court of Appeals rejects this proposition. Clearly, §20-109 now speaks of cohabitation as a post-marital thing which may in some circumstances serve to terminate or modify alimony that is already ordered and being received. The husband's equation of that with the alimony issue being decided in a divorce is rejected. The court also affirms the judge's $1500 fee award, supported by proof of the $15,000 in attorneys fees the wife had incurred. Wright v. Wright, ___ Va. App. ___, ___ S.E.2d ___, 17 VLW 68 (6/18/02).

ALIMONY — ADULTERY — "MANIFEST INJUSTICE" — RELATIVE DEGREES OF FAULT. Whatever the institution of marriage is today in the eyes of the court system, it — or at least the sexual fidelity aspect of it — is a matter of such trifling importance that it can be outweighed by almost anything, or nothing, depending on how you call 'em. A wife wanted alimony and the husband argued that her post-separation adultery was a bar under Code §20-107.1. It's not, the Court of Appeals explained in Porter v. Porter, unpublished, 19 VLW 286 (7/13/04). After all, there are relative degrees of fault here, and compared to the wife's adultery the husband is clearly the one who destroyed the marriage because (A) he told his wife in the year 2000 that he could live alone, and (B) in late 1999, he had begun to visit attorneys and (C) have one prepare legal documents with the intent to limit her claims on his business and assets. After that, (D) he told wife he wanted to live alone (the evidence showed, according to the Court of Appeals), and (E) in February 2001 he gave the wife a draft separation agreement for her to consider. The trial court in refusing to deny alimony (and refusing to grant the divorce on adultery grounds) properly considered and weighed the respective degrees of fault and properly found manifest injustice.